"Political power grows out of the barrel of a gun."
— Mao Tse-tung, "Problems of War and Strategy" (1938), Selected Works, Vol. II, p. 224.
The United States of America is an anomaly. Born in a violent revolution against a colonial power, the country famously professes to be a nation of laws and not of men (read “persons”). Yet those laws are ultimately backed by guns, as evidenced by the presence of armed sheriff’s deputies or federal marshals at every courthouse in the country.
Straightforward logic suggests that rational people in a self-governing republic would never authorize their legal representatives to disarm them, nor design a Constitution to deprive them of their inherent right to keep and bear arms for self-defense.
More than two hundred years after the country adopted the Second Amendment, the United States Supreme Court has finally agreed, but many questions remain.
Set forth below are the text of the 2nd Amendment and some of the most pertinent historical and current cases:
A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
— United States Constitution, Amendment II, ratified December 15, 1791.
In Cruikshank, a Reconstruction-era Supreme Court found that the 2nd Amendment applied solely to the federal government and not to the states.
Defendants there were indicted for conspiracy to violate the Enforcement Act, 16 Stat. 140, designed to enforce legal rights for newly-freed slaves, by “banding together, with intent 'unlawfully and feloniously to injure, oppress, threaten, and intimidate' two citizens of the United States, 'of African descent and persons of color… ’,” including to “hinder and prevent the exercise by the same persons of the 'right to keep and bear arms for a lawful purpose.'”
In discussing at length the sufficiency of the indictment, the Court distinguished the powers of the states from those of the national government and found that the specified right of “bearing arms for a lawful purpose” was “not a right granted by the Constitution” nor “in any manner dependent upon that instrument for its existence.” The Second Amendment, it found, “declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” 92 U.S. 542 , 553.
The Court in Presser relied upon Cruikshank and found that the right to keep and bear arms did not include anarchists leading a private military parade down a public street without a permit.
In December 1879, 31 year-old Illinois citizen Herman Presser, had led a 400-man company of a German socialists and anarchists group known as the “Lehr und Wehr Verein” (“Education and Defense Association”) armed with rifles through the streets of the city of Chicago while on horseback and carrying a cavalry sword. Presser was then indicted, tried, and convicted of violating an Illinois statute that made it unlawful “for any body of men … other than the regular organized volunteer militia of this state, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state, without the license of the governor … .” Act May 28, 1879; Laws 1876, 192.
Presser appealed on the grounds that the Illinois statute purported to exercise a legislative power that the Constitution forbade to the states under the militia clause of Article I, Section 8, and that it violated his rights under the 2nd and 14th amendments. The Supreme Court rejected his claims.
The Court found, first, that the two sections of the statute under which Presser had been tried and convicted could be separated from the rest, so whether the rest of the statute purported to exercise powers reserved to the federal government did not defeat the conviction. Second, the Court found, those sections of the statute forbidding “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law” did not infringe the right of the people to keep and bear arms. 116 U.S. 265. Finally, relying on U. S. v. Cruikshank, the Court repeated that the Second Amendment limited only the power of Congress and the national government, and not that of the State of Illinois.
In a criminal case arising from an appeal of a Texas murder conviction, the Supreme Court in 1894 refused to consider the Second and Fourth Amendment claims of one Franklin P. Miller because he had not raised those issues in the trial court and because again, according to Cruikshank and other cases, those rights applied only against the federal government.
Mr. Miller claimed that then-existing Texas state law that forbade private citizens from carrying weapons and that authorized the warrantless arrest of any person doing so conflicted with the Second Amendment right to keep and bear arms and the Fourth Amendment’s protections against unreasonable searches and seizures. In its own words, the Supreme Court “examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. [citing Barron v. Baltimore, 7 Pet. 243; Fox v. Ohio, 5 How. 410; Twitchell v. Com., 7 Wall. 321; The Justices v. Murray, 9 Wall. 274; U. S. v. Cruikshank, 92 U.S. 542 , 552; Spies v. Illinois, 123 U.S. 131 , 8 Sup. Ct. 21.]”
The Court also rejected Miller’s claim that the 14th Amendment, only recently adopted in 1868, prohibited the states from violating the 2nd and 4th Amendments as well, for Miller had failed to make that argument in the trial court: “And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.”
In a case arising from a criminal conviction of an unrelated Miller under the 1934 National Firearms Act, the Supreme Court 45 years later upheld a conviction for using a shotgun with a barrel shorter than a specified federal limit, finding no evidence of a “reasonable relationship” of sawed-off shotguns to a militia. The Court interpreted “militia,” however, to mean all males physically capable of acting in concert for common defense, with arms they supplied themselves and of the kind in common use.
Both proponents and opponents of 2nd Amendment rights therefore cite this case in their favor.
For the first time in nearly 220 years, the Supreme Court in Heller found in the Second Amendment an individual right, independent of service in the militia, to possess “a firearm” for lawful purposes “such as” self-defense within the home. The Court’s decision rested on an historical analysis of common law rights predating the republic.
Although the Court emphasized that the 2nd Amendment did not protect a right to keep and carry “any weapon whatsoever, in any manner whatsoever, for whatever purpose,” the Court nonetheless found, 5-4, that the District of Columbia’s total ban on operable handguns in the home was unconstitutional. The majority did, however, recognize that long-standing “reasonable prohibitions” such as those against carrying concealed weapons, possession of firearms by felons and the mentally ill, the carrying of firearms in “sensitive places” such as schools and government buildings, and imposing conditions and qualifications on the commercial sale of arms may be constitutional.
Heller’s reference to a reasonable prohibition against carrying firearms in “sensitive places” suggests by negative implication a lawful right to carry firearms elsewhere. But because Mr. Heller’s attorneys had conceded at oral argument that Heller sought only an order requiring the District to issue him a permit to keep a working handgun in his home the Court went no further than the requested relief, and because Heller arose in the District of Columbia, a federal enclave, the Court left open whether the Second Amendment also applies against the states.
McDonald explicitly answered one question left open by Heller: that the 2nd Amendment applies against the states and municipal governments as well as against the federal government. (Former Heartland Institute Senior Fellow for Legal Affairs Maureen Martin filed an amicus brief in that case. It was the first brief cited in the majority opinion by Justice Samuel Alito.)
Based on historical analysis the Court found that self-defense is a basic right, that the right to keep and bear arms is fundamental to a scheme of ordered liberty, and that handguns are the most preferred firearm in the nation and therefore fit easily within that basic right.
Still, McDonald left open whether the 2nd Amendment includes a right to carry a handgun outside the home, as well as what other kinds of weapons the 2nd Amendment may protect.
In Moore v. Madigan, writing for a 2-1 panel majority, Judge Richard Posner of the U. S. Court of Appeals for the Seventh Circuit in Chicago found in view of Heller that the 2nd Amendment protects a right to carry a firearm outside the home for lawful purposes. Although finding the social science indeterminate, Judge Posner found that Heller had resolved the historical debate, that the right to keep and bear arms was “just about self-defense,” and that the need for self-defense was most acute outside the home.
Because the right to self-defense could not rationally be limited to inside the home, he therefore invalidated the contrary provisions of the Illinois unlawful use of weapons statute without determining what level of constitutional scrutiny was required – i.e., “strict scrutiny,” “rational relationship,” or some undetermined intermediate level.
Writing for the minority in a 5-4 decision not to rehear Moore en banc, Judge David Hamilton of the Seventh Circuit pointed out that neither the Supreme Court nor the Moore majority has yet determined (a) who may carry a loaded firearm in public; (b) where qualified persons may carry firearms in public (i.e., what “places” are “sensitive”?); (c) how qualified persons may carry firearms in public places where not prohibited (i.e., open vs. concealed carry); or (d) which arms may be carried in public (other than handguns).
In addition to the open questions Judge Hamilton has identified, other federal Courts of Appeal have reached different conclusions from Moore, upholding, for example, a New York State law that requires a concealed carry gun permit applicant to demonstrate “proper cause” to carry the gun in public, Kachalsky v. County of Westchester, Nos. 11-3642, -3692, 2012 WL 590 5907502 (2d Cir. Nov. 27, 2012), or refusing to opine on whether “there may or may not be a Second Amendment right in some places beyond the home,” United States v. Masciandaro, 683 F.3d 458, 475 (4th Cir. 2011).
The Supreme Court may yet resolve some of these questions, including whether Moore is correctly decided, if the State of Illinois files a petition for certiorari in the Moore case or at some future opportunity. In the interim, it may be best to let the states operate as “laboratories of democracy” to pursue their own best policies within the bounds of established case law, as the Moore majority has ordered the State of Illinois to do. (Moore, Slip. Op. at 21.)